Gelpi v. 37th Avenue Realty Corp.
Decision Date | 05 March 2001 |
Citation | 281 A.D.2d 392,721 N.Y.S.2d 380 |
Court | New York Supreme Court — Appellate Division |
Parties | MARIA GELPI, Appellant,<BR>v.<BR>37TH AVENUE REALTY CORP., Defendant, and 89-02 FOOD CORP., Doing Business as TRADE FAIR SUPERMARKET, Respondent. |
Ritter, J. P., Friedmann, H. Miller and Feuerstein, JJ., concur.
Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint insofar as asserted against 89-02 Food Corp., d/b/a Trade Fair Supermarket, is reinstated.
The plaintiff alleges that she slipped and fell on garlic oil in the dairy aisle of the defendant 89-02 Food Corp., d/b/a Trade Fair Supermarket (hereinafter Trade Fair). At her deposition, the plaintiff testified that before she fell, she overheard a customer tell a store employee that he had a jar of minced garlic and "it was either broken or it was leaking, cracked or something." In addition, while near the dairy aisle, the plaintiff noticed a garlic odor. The Supreme Court found that the plaintiff's statement was inadmissible hearsay, and therefore insufficient to defeat the motion by Trade Fair.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein. However, a statement which is not offered to establish the truth of the facts asserted therein is not hearsay (see, Stern v Waldbaum, Inc., 234 AD2d 534). It is well established that out-of-court statements by unknown declarants are admissible to establish notice of a dangerous condition, even where the accuracy of the statements is not established (see, Morrissey v Riverbay Corp., 222 AD2d 234).
Where, as here, the truth of the statement is not at issue, (Stern v Waldbaum, Inc., supra, at 535; accord, Matter of Oberle v Caracappa, 133 AD2d 202).
In light of our determination that the statement is admissible, the appellant raised a triable issue of fact, and the respondent's motion for summary judgment should have been denied.
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...notice of a dangerous condition. Quiroa v. Ferenczi, 77 A.D.3d 901, 909 N.Y.S.2d 762 (2d Dept. 2010); Gelpi v. 37th Ave. Realty Corp. , 281 A.D.2d 392, 721 N.Y.S.2d 380 (2d Dept. 2001); Stern v. Waldbaum, Inc ., 234 A.D.2d 534, 651 N.Y.S.2d 187 (2d Dept. 1996). • The statement is offered no......
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...notice of a dangerous condition. Quiroa v. Ferenczi, 77 A.D.3d 901, 909 N.Y.S.2d 762 (2d Dept. 2010); Gelpi v. 37th Avenue Realty Corp. , 281 A.D.2d 392, 721 N.Y.S.2d 380 (2d Dept. 2001); Stern v. Waldbaum, Inc ., 234 A.D.2d 534, 651 N.Y.S.2d 187 (2d Dept. 1996). he statement is ofered no......
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Hearsay
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...notice of a dangerous condition. Quiroa v. Ferenczi, 77 A.D.3d 901, 909 N.Y.S.2d 762 (2d Dept. 2010); Gelpi v. 37th Avenue Realty Corp. , 281 A.D.2d 392, 721 N.Y.S.2d 380 (2d Dept. 2001); Stern v. Waldbaum, Inc ., 234 A.D.2d 534, 651 N.Y.S.2d 187 (2d Dept. 1996). • The statement is offered ......